3. To require attendance before a commissioner appointed to take testimony by a court of a foreign country or of the United States, or of any other state or territory in the United States, or of any other district or county within this state, or before any officer or officers empowered by the laws of the United States to take testimony, it may be issued by any judge, or justice of the peace in places within their respective jurisdictions, with like power to enforce attendance; and, upon certificate of contumacy to said court, to punish contempt of such process, as such judge or justice could exercise if the subpoena directed the attendance of the witness before his court in a matter pending therein. [C. L. § 3923.

Cal. C. Civ. P. 1936.

3419. Service of subpoena, by whom and how made. The service of a subpoena is made by showing the original and delivering a copy, or a ticket containing its substance, to the witness personally, or by leaving a copy with some suitable person at the place of his abode, giving or offering to him at the same time, if demanded by him, the fees to which he is entitled for travel to and from the place designated, and one day's attendance there. The service must be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance. Such service may be made by any person. $ 3924.

[C. L.

Cal. C. Civ. P. ? 1987*. 998. Witness fee two dollars per day; mileage, Witness may demand fee and mileage in advance, twenty cents per mile, 2 991.

3420. Id. When witness concealed, inclosure may be broken. If a witness is concealed in a building or vessel, so as to prevent the service of a subpœna upon him, any court or judge, or any officer issuing the subpoena, may, upon proof by affidavit of the concealment, and of the materiality of the witness, make an order that the sheriff of the county serve the subpoena; and the officer must serve it accordingly, and for that purpose may break into the building or vessel where the witness is concealed. [C. L. § 3925.

Cal. C. Civ. P. ? 1988.

3421. Witness not required to leave county. Exception. A witness is not obliged to attend as a witness before any court, judge, justice, or any other officer out of the county in which he resides, unless the distance be less than thirty miles from his place of residence to the place of trial. [C. L. § 3926*. Cal. C. Civ. P. ? 1989.

3422. Person present in court must testify. A person present in court, or before a judicial officer, may be required to testify in the same manner as if he were in attendance upon a subpœna issued by such court or officer. [C. L. § 3927.

Cal. C. Civ. P. 2 1990.

3423. Disobedience of witness a contempt. Punishment if witness a party. Disobedience to a subpoena, or a refusal to be sworn, or to answer as a witness, or to subscribe an affidavit or deposition when required, may be punished as a contempt of the court or officer issuing the subpoena or requiring the witness to be sworn; and, if the witness be a party, his complaint or answer may be stricken out. [C. L. § 3928.

Cal. C. Civ. P. 1991.

3424. Id. Liability to forfeiture and damage. A witness disobeying a subpoena also forfeits to the party aggrieved the sum of one hundred dollars and all damages which he may sustain by the failure of the witness to attend, which forfeiture and damages may be recovered in a civil action. [C. L. § 3929.

Cal. C. Civ. P. 1992.

3425. Warrant issued for absent witness. In case of a failure of a witness to attend, the court or officer issuing the subpoena, upon proof of the service thereof, and of the failure of the witness, may issue a warrant to the sheriff

of the county to arrest the witness and bring him before the court or officer where his attendance was required. [C. L. § 3930.

Cal. C. Civ. P. 1993.

3426. Contents of warrant of commitment. To whom directed. Every warrant of commitment issued by a court or officer pursuant to this chapter must specify therein, particularly, the cause of the commitment, and if it be for refusing to answer a question, such question must be stated in the warrant. And , every warrant to arrest or commit a witness pursuant to this chapter, must be directed to the sheriff of the county where the witness may be and must be executed by the officer in the same manner as process issued by the district court. [C. L. § 3931.

Cal. C. Civ. P. 1994.

3427. When witness a prisoner, order for production. If the witness be a prisoner confined in a jail or prison within this state, an order for his examination in the prison upon deposition, or for his temporary removal and production before a court or officer for the purpose of being orally examined, may be made as follows:

1. By the court itself in which the action or special proceeding is pending, unless it be a justice's court.

2. By a justice of the supreme court or by a judge of the district court of the county where the action or proceeding is pending, if pending before a justice's court or before a judge or other person out of court. [C. L. § 3932*.

Cal. C. Civ. P. 1995.

3428. Id. Order made upon affidavits. Form. Such order can be made only on the motion of a party, upon affidavit showing the nature of the action or proceeding, the testimony expected from the witness, and its materiality. [C. L. § 3933.

Cal. C. Civ. P. 1996.

3429. Id. Witness produced if in county. Deposition, otherwise. If the witness be imprisoned in the county where the action or proceeding is pending, his production may be required. In all other cases his examination, when allowed, must be taken upon deposition. [C. L. § 3934*.

Cal. C. Civ. P. 1997.

RIGHTS AND DUTIES OF WITNESSES.

3430. Witness served must attend and answer legal questions. A witness, served with a subpoena, must attend at the time appointed, with any papers under his control required by the subpoena, and answer all pertinent and legal questions; and unless sooner discharged, must remain until the testimony is closed. [C. L. § 3958.

Cal. C. Civ. P. 2064.

3431. Id. Witness' privilege in certain cases. A witness must answer questions legal and pertinent to the matter in issue, though his answer may establish a claim against himself; but he need not give an answer which will have a tendency to subject him to punishment for felony; nor need he give an answer which will have a direct tendency to degrade his character, unless it be to the very fact in issue, or to a fact from which the fact in issue would be presumed. But a witness must answer as to the fact of his previous conviction for felony. [C. L. § 3959.

Cal. C. Civ. P. 2065.

A witness can be compelled to answer where the answer would disgrace him, only where the evidence is material. Conway v. Clinton, 1 U. 215.

Immunities given hereby are personal privileges of witness which he waives by failing to claim himself. People v. Larsen, 10 U. 143; 37 P. 258.

3432. Rights of witness, protection from insult, etc. It is the right of a witness to be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor; to be detained only so long as the interests

of justice require it; and to be examined only as to matters legal and pertinent to the issue.

Cal. C. Civ. P. 2066.

3433. Witness exempt from arrest in civil action. Every person who has been, in good faith, served with a subpoena to attend as a witness before a court, judge, commissioner, referee, or other person, in a case where the disobedience of the witness may be punished as a contempt, is exonerated from arrest in a civil action while going to the place of attendance, necessarily remaining there, and returning therefrom. [C. L. § 3960.

Cal. C. Civ. P. 2067.

3434. Id. Unlawful arrest void. Witness' damages. The arrest of a witness contrary to the preceding section is void, and when wilfully made, is a contempt of the court, and the person making it is responsible to the witness arrested for double the amount of the damages which may be assessed against him, and is also liable to an action at the suit of the party serving the witness with the subpoena, for the damages sustained by him in consequence of the arrest. [C. L. § 3961.

Cal. C. Civ. P. 2068.

3435. Arrest made in good faith. Affidavit claiming exemption. An officer is not liable to the party for making the arrest in ignorance of the facts creating the exoneration, but is liable for any subsequent detention of the party, if such party claim the exemption, and make an affidavit stating:

1. That he has been served with a subpoena to attend as a witness before a court, officer, or other person, specifying the same, the place of attendance, and the action or proceeding in which the subpoena was issued; and,

2. That he has not thus been served by his own procurement, with the intention of avoiding an arrest;

3. That he is at the time going to the place of attendance, or returning therefrom, or remaining there in obedience to the subpoena. The affidavit may be taken by the officer and exonerates him from liability for discharging the witness when arrested. [C. L. § 3962.

Cal. C. Civ. P. 2069.

3436. Id. Court to discharge witness unlawfully arrested. The court or officer issuing the subpoena, and the court or officer before whom the attendance is required, may discharge the witness from an arrest made in violation of section thirty-four hundred and thirty-three. If the court have adjourned before the arrest, or before application for the discharge, a judge of the court may grant the discharge. [C. L. § 3963.

Cal. C. Civ. P. 2070.

OATHS AND AFFIRMATIONS.

3437. Officers authorized to administer oaths. Every court, every judge or clerk or deputy clerk of any court, every justice, and every notary public, the secretary of state, and every officer or person authorized to take testimony in any action or proceeding, or to decide upon evidence, has power to administer oaths or affirmations. [C. L. § 3973.

Cal. C. Civ. P. 2093*.

3438. Form of oath or affirmation. An oath, or affirmation, in an action or proceeding, may be administered as follows, the person who swears or affirms expressing his assent when addressed in the following form:

"You do solemnly swear (or affirm, as the case may be,) that the evidence

you shall give in this issue (or matter) pending between

and

shall

be the truth, the whole truth, and nothing but the truth, so help you God." [C. L. § 3974.

Cal. C. Civ. P. 2 2094.

3439. Id. Court may vary form. Whenever the court before which a person is offered as a witness is satisfied that he has a peculiar mode of swearing connected with or in addition to the usual form of administration which in his opinion is more solemn or obligatory, the court may in its discretion adopt that mode. [C. L. § 3975.

Cal. C. Civ. P. 2 2095.

3440. Id. Witnesses not Christian. When a person is sworn who believes in any other than the Christian religion, he may be sworn according to the peculiar ceremonies of his religion if there be any such. [C. L. § 3976.

Cal. C. Civ. P. 2 2096.

3441. Affirmation or declaration instead of oath. Any person who desires it may, at his option, instead of taking an oath make his solemn affirmation or declaration, by assenting, when addressed in the following form: "You do solemnly affirm (or declare) that," etc., as in section thirty-four hundred and thirty-eight. [C. L. § 3977.

Cal. C. Civ. P. 2097.

CHAPTER 54.

AFFIDAVITS.

3442. Affidavit may be used for what purposes. An affidavit may be used to verify a pleading or a paper in a special proceeding, to prove the service of a summons, notice, or other paper in an action or special proceeding, to obtain a provisional remedy, the examination of a witness, or a stay of proceedings, or upon a motion, and in any other case expressly permitted by some other provision of this code. [C. L. § 3935.

Cal. C. Civ. P. 2009.

Validity of affidavit, etc., defectively entitled, 3483.

Affidavit must have a venue; omission of "ss,"

however, is immaterial irregularity. Smith v. Richardson, 1 U. 194. McCord & Nave Mercantile Co. v. Glenn, 6 U. 139; 21 P. 500.

3443. Proof of publication, how made. Evidence of the publication of a document or notice required by law or an order of a court or judge to be published in a newspaper, may be given by the affidavit of the printer of the newspaper, or his foreman, or principal clerk, annexed to a copy of the document or notice, specifying the times when, and the paper in which, the publication was made. [C. L. § 3936.

Cal. C. Civ. P. ¿ 2010.

3444. Where filed. Certified copy prima facie evidence. If such affidavit be made in an action or special proceeding pending in a court, it may be filed with the court or clerk thereof. If not so made, it may be filed with the recorder of the county where the newspaper is printed. In either case the original affidavit, or a copy thereof, certified by the judge of the court or officer having it in custody, is prima facie evidence of the facts stated therein. [C. L. § 3937. Cal. C. Civ. P. ? 2011*.

3445. Affidavit taken before whom, if in Utah. An affidavit to be used before any court, judge, or officer of this state, may be taken before any judge or clerk of any court, or any justice of the peace, or any notary public in this state. [C. L. § 3938.

Cal. C. Civ. P. 2012.

3446. Id. If taken in another state. An affidavit taken in another state or territory of the United States, to be used in this state, may be taken before a commissioner appointed by the governor of this state to take affidavits and depositions in such other state or territory, or before any notary public in

another state or territory, or before any judge or clerk of a court of record having a seal. [C. L. § 3939.

Cal. C. Civ. P. 2013.

3447. Id. If taken in a foreign country. An affidavit taken in a foreign country to be used in this state, may be taken before an ambassador, minister, consul, vice-consul, or consular agent of the United States, or before any judge of a court of record having a seal, in such foreign country. [C. L. $ 3940.

Cal. C. Civ. P. 2 2014.

3448. Certification of affidavit taken before foreign judge, etc. When an affidavit is taken before a judge or a court in another state or territory, or in a foreign country, the genuineness of the signature of the judge, the existence of the court, and the fact that such judge is a member thereof, must be certified by the clerk of the court, under the seal thereof. [C. L. § 3941.

Cal. C. Civ. P. 2 2015.

CHAPTER 55.

DEPOSITIONS.

TAKEN OUT OF THE STATE.

3449. Deposition out of state, taken when. The testimony of a witness out of the state may be taken by deposition in an action at any time after the service of the summons or the appearance of the defendant; and, in a special proceeding, at any time after a question of fact has arisen therein. [C. L. § 3942.

Cal. C. Civ. P. 2020.

3450. Commission, by and to whom issued. The deposition of a witness out of this state may be taken upon commission issued from the court, under the seal of the court, upon an order of the judge, or court, or justice of the peace in any case pending before such judge, court, or justice of the peace respectively, on the application of either party, upon five days previous notice to the other. If issued to any place within the United States, it may be directed to any person agreed upon by the parties, or, if they do not agree, to any judge or notary public, or person named or commissioned by the officers issuing it. If issued to any country out of the United States, it may be directed to a minister, ambassador, consul, vice-consul, or consular agent of the United States in such country, or to any person agreed upon by the parties. [C. L. § 3944*; '92, p. 65.

Cal. C. Civ. P. ? 2024*.

A person appointed to take a deposition in another state, must be one of the local officers specified in the practice act. Newton v. Brown, 2 U. 287. A stipulation waiving all objections to the form

of taking depositions covers the objection that they were taken before a notary instead of a commissioner. Homberger v. Alexander, 11 U. 363; 40 P. 260.

3451. Interrogatories, proposed and settled. Oral examination. Such proper interrogatories, direct and cross, as the respective parties may propose, to be settled if the parties disagree as to their form by the judge or officer granting the order for the commission at a day fixed in the order, may be annexed to the commission; or, when the parties agree to that mode, the examination may be without written interrogatories. [C. L. § 3945.

Cal. C. Civ. P. 2025.

3452. Commissioners to take, certify, and forward deposition. The commission must authorize the commissioners to administer an oath to the witness, and to take his deposition in answer to the interrogatories, or, when the examination is to be without interrogatories, in respect to the question in dispute, and to certify the deposition to the court in a sealed envelope directed to the